Ginsburg pushes to define rights of women on job

WASHINGTON -- New Supreme Court Justice Ruth Bader Ginsburg served notice yesterday that she is not likely to go easy on lawyers who argue timidly for women's rights before the court.

In a highly unusual effort by a justice to push lawyers openly and repeatedly to get them to embrace stronger legal positions, Ms. Ginsburg used volleys of questions in a sexual harassment case to stake out a strong liberal stance on protection of female workers.

The case of a Tennessee woman who quit in response to repeated sexually tinged remarks and gestures from her boss may lead the court to spell out the kinds of on-the-job behavior that will be illegal under federal law aimed at workplace discrimination.

In the seven years since the court last ruled on a sexual harassment case, that issue has gained national prominence -- especially after the 1991 Senate hearings on Justice Clarence Thomas' nomination, when he was accused of sexually harassing a woman who worked for him in the government.

Justice Thomas sat throughout yesterday's hearing in silence, and did not join in when comments by justices or lawyers produced laughter.

Although some legal analysts had speculated that he might stay out of the case, the fact that he was present for the hearing was a definite sign that he would join in the final ruling. The choice, by custom, is his to make.

Justice Ginsburg, who is rapidly becoming one of the most talkative members of the court after just two weeks of oral arguments, was again a dominant figure throughout the one-hour hearing on the Tennessee case.

She also dominated a separate hourlong hearing testing whether broad new job rights protections created by Congress in 1991 should be extended to workplace bias cases that arose before that law was enacted. That hearing was a highly technical discussion of specific parts of the 1991 law.

Even in that case, however, Justice Ginsburg admonished a lawyer for arguing that it would not be fair to extend the law's protection backward, because business executives would not have been warned of illegality.

She told him that the command of federal law -- "Thou shalt not discriminate" -- had been a "very strong" rule for years. "It is not like a traffic ticket," she commented.

What Congress had done in 1991, she said, was merely to "make the price tag [of job bias] higher."

She was more active in the Tennessee case. That case involves Teresa Harris, who was a manager for Forklift Systems, Inc., an equipment leasing company in Nashville. Ms. Harris left after repeated sexual remarks and gestures to her by Charles Hardy the company president. A lower court ruled that Mr. Hardy was a "vulgar" man, but that he had not harassed Ms. Harris illegally.

In that case, Justice Ginsburg suggested to a Clinton administration lawyer that he was proposing too complex a legal standard for judging taunts to women at work, and suggested that women perhaps could win sexual harassment claims by proving only that "one sex has to put up with something the other sex does not."

In other questions, she implied that women should not have to prove that their performance at work actually suffered because of harassment -- the view the Clinton administration advocated -- and she suggested that "the terms and conditions of employment are not equal if one [sex] is being called names and the other is not."